I. Preliminaries
1. The Judgement of this Honourable Court pertains to the Constitution Petition dated 19th October 2023 and filed on 23rd October 2023. It was by RICHARD MENZA TSANGARI, YAWA NDEGWA MWAGARI, FREDRICK KANATO NDAIKWA, NDAIKWA MRINA MWACHILUNGO, NGATI MWACHILUNGO KAMBI, IDI GAMBARI LUKANJA, NGATE NDAIKWA KAMBI, and MWANGADU YAWA NDEGWA, the Petitioners herein.
2. The Petition was brought by dint of Articles 2, 3, 10, 20, 21[1], 22, 23 [3], 40, 47, 64, 67[2][e], 129 ( 1 ), 159 ( 2 ), 162[2][b] 258 & 259 of the Constitution of Kenya, 2010; Sections 4 & 5 of the Community Land Act No 27 of 2016 and Section 13 of the Environment & Land Court Act, No. 19 of 2011.
3. Upon service of the pleadings, only the 3rd and 5th Respondents participated in the Petition by filing Replying affidavits opposing it. The 2nd 4th 6th 7th 8th and 9th Respondents never filed any documents opposing the petition or in response of the Petition. This was despite the leave of court having been granted to the Petitioners on 26th April 2024 allowing them to serve the said Respondents vide substituted service.
II. Description of the parties
4. The Petitioners describe themselves as male adults and members of the Mwayawa Gari Kambi Clan and members of the Mwavumbo Group Ranch
5. The 1st Respondent is the Land Registrar Kwale and exercising such administrative powers and functions as conferred under Section 14 of the Land Registration Act No 3 of 2012
6. The 2nd Respondent is a limited liability company duly registered within the Republic of Kenya and carries out business in Kenya.
7. The 3rd Respondent is a state corporation established by an Act of parliament No 20 of 1990 and carries out its mandate within the entire coast region
8. The 4th and 9th Respondents are both male adults presumably sound mind and health currently residing and working for gain within the Republic of Kenya
9. The 5th Respondent is an office established under the Public Trustee Act
10. The 6th 7th and 8th Respondents are limited liability company duly registered within the Republic of Kenya
III. Petitioners Case
11. The brief factual background of the Petition was that the Petitioners were members of the Mwayawa Gari Kambi Clan and are the legal and lawful owners of land parcel no KWALE/MWAVUMBO/1 the suit property herein. That the Petitioners have been in occupation of the suit property since time immemorial as individuals and as community members.
12. It has been stated that the 2nd to 9th Respondents have on different occasions obtained titles respect of the said KWALE/MWAVUMBO/1. That attempts by the Petitioners to regularise their claims have been unsuccessful. That the Respondents have taken over the suit property and the Petitioners are at the risk of losing their livelihood if the action of the 2nd to 9th Respondents were not to be checked by the court.
13. That unless the petition is allowed, the Petitioners will suffer great prejudice that cannot be remedied, including the loss of their investments in the property.
14. The Petition was supported by a 12 paragraphed supporting affidavit sworn by FREDRICK KANATO NDAIKWA, the 3rd Petitioners herein. He stated that:-
a) he had the full authority of the rest of the Petitioners to swear the affidavit on their behalf. The deponent stated that the Petitioners have been members of Mwayawa Gari Clan and the Mwavumbo Group Ranch who have at all times been owners of land parcel KWALE/MWAVUMBO/1 the suit property herein.
b) the 2nd – 9th Respondents have illegally and fraudulently allocated themselves portions of the suit property with the aid of the 1st Respondent. that the 2nd Respondent has fraudulently and illegally been allocated a portion measuring 4.04Ha and a further 36.423 Acres on 1st October 2012 being KWALE/MWAVUMBO/52 and 53 respectively.
c) the 3rd respondent has also been fraudulently allocated a portion measuring 4.04Ha and was issued with a title deed on 29th March 2018 by the 1st Respondent for KWALE/MWAVUMBO/169.
d) the 4th and 5th Respondents have both fraudulently and illegally been allocated portions measuring 40.47Ha, 73.70Ha, 7.80Ha and 4.05Ha and were issued with title deeds on 4th July 2011 and 10th June 2014 by the 1st Respondent for KWALE/MWAVUMBO/49,168,170 ,171 and 172.
e) the 6th Respondent had also been fraudulently allocated a portion measuring 4.05Ha and was issued with a title deed on 15th December 2019 by the 1st Respondent for KWALE/MWAVUMBO/173.
f) the 7th Respondent had also been fraudulently allocated a portion measuring 404.85 Ha and was issued with a title deed on 10th September 2019 by the 1st Respondent for KWALE/MWAVUMBO/169.
g) the 8th Respondent had also been fraudulently allocated a portion measuring 4.04Ha and was issued with a Certificate of Lease on 30th December 2014 by the 1st Respondent for KWALE/MWAVUMBO/1A.
h) the 9th Respondent had also been fraudulently allocated a portion measuring 202.35Ha and was issued with a title deed on 5th July 2011 by the 1st Respondent for KWALE/MWAVUMBO/47
15. The Petitioners prayed for the following orders:-
a) A declaration that parcel no KWALE/MWAVUMBO/1 rightfully belongs to the Petitioners collectively as members of the Mwayawa Gari Kambi Clan as well as members of the Mwavumbo Group Ranch and a new title deed issued forthwith by the Registrar of Titles in their favour
b) An order that the County Land Registrar/ Registrar of titles make all relevant entries in the register of land and that records be regularised to reflect the names of the Mwayawa Gari Kambi Clan/Mwavumbo Group Ranch as the registered owners of land reference number KWALE/MWAVUMBO/1
c) An order for compensation against the 2nd-9th Respondents as provided for in Article 23[3][e] of the constitution made up of general damages for pain and suffering, punitive and exemplary damages to compensate the Petitioners for denying, violating, infringing or threatening the Petitioners right to property over the suit property comprising KWALE/MWAVUMBO/1.
d) The Honourable Court be pleased and do hereby grant judicial review order of CERTIORARI to remove into this Honourable Court and quash any and all titles illegally, wrongfully and unjustifiably issued over the property KWALE/MWAVUMBO/1.
e) The Honourable Court do hereby grant a Judicial Review Order of MANDAMUS to compel the 1st Respondent herein to issue a title in the name of the Petitioner’s as the Mwayawa Gari Kamba Clan/Mwavumbo Group Ranch
f) The Petitioner’s right to eliminate expectation and protection of his rights to property under Article 40 of the constitution of Kenya 2010 were infringed upon by the 1st-9th Respondents.
g) This Honourable Court be pleased to make any such orders as it deems just in the circumstances
h) Costs of this Petition be provided for.
IV. The responses to the Petition by the 3rd Respondent
16. In response to the Petition, the 3rd Respondent filed a Replying Affidavit sworn by CHRISTINE AQUA MUDUDA the Company Secretary. The same was dated 23rd February 2024. The deponent stated that:-
a) There were no constitutional infringements arising from the Petition and the claim ought to have been filed as a Plaint.
b) The Petitioners had failed to attach any document to prove that they were members of Mwayawa Gari Kambi Clan/Mwavumbo Group Ranch.
c) The 4th and 5th Respondents were the registered proprietors and title holders of the suit property KWALE/MWAVUMBO/51 and KWALE/MWAVUMBO/169 which were created from land KWALE/MWAVUMBO/51.
d) The 3rd Respondent purchased the property KWALE/MWAVUMBO/169 measuring 10 acres at Samburu at a sum of Kenya Shillings Three Million Five Hundred Thousand (Kshs. 3,500,000/-) on 23rd June 2014.
e) The 3rd Respondent maintained that they were the registered owners of the suit property and had been in possession and occupation of the said suit land.
f) The Petitioners narrative that they had been in occupation of the suit property was false.
g) The 3rd Respondent denied that they had in any way infringed upon the Petitioners right to own property as provided for under the provision of Article 40 of the Constitution of Kenya 2010.
h) Lastly that the prayers herein could not be sought through a Constitutional Petition therefore the Petition should be dismissed with costs.
V. The responses to the Petition by the 5th Respondent
17. The 5th Respondent filed a Replying Affidavit in opposing the Petition. the same is dated 25th November 2024 and was sworn by JAFRED ERIMA MALIRO the Assistant Public Trustee. The deponent averred as follows that:-
a) The Petition was incompetent, frivolous and fatally defective as the Petitioners had not demonstrated any ground that could warrant the court to issue the orders sought.
b) The Petition was a non-starter as the 4th Respondent died long before the filing of the Petition.
c) It was averred that there was no proof of the existence of the alleged Mwayawa Gari Kambi Clan/Mwavumbo Group Ranch to create locus in the first instance.
d) From the searches that had been attached on the Petitioner’s affidavit in support of the Petition, all the suit property is registered in the names of the public trustee and Fredrick Mwachiti Johnson in trust of the rightful heirs.
e) On the contrary there was no evidence that the subject property was registered in the name of Mwayawa Gari Kambi Clan/ Mwavumbo Group Ranch.
f) The suit property KWALE/ MWAVUMBO/51 was further sub - divided into nine portions.
g) KWALE/MWAVUMBO/50 was further subdivided into 133 portions which were title no Kwale/Mwavumbo/96 to 167. Some of the portions have already been sold to third parties as listed below:-
i. Kwale/Mwavumbo/47 sold to Barasa Alex Tabulo.
ii. Kwale/Mwavumbo/173 Sea Front Multipurpose Cooperative Society Limited.
iii. Kwale/Mwavumbo/169 sold to Coast Development Authority.
iv. Kwale/Mwavumbo/176 transferred to Manjewa Station Limited.
h) All the purchasers had taken possession of the suit properties as bought from the 4th to 5th Respondents. The allegations by the Petitioners that they have been in possession of the suit property was not true and thus there has been no infringement on their rights.
VI. The 2nd, 4th 6th 7th 8th and 9th Respondents Case
18. The 2nd, 4th 6th 7th 8th and 9th Respondents herein did not respond to the petition despite substitute service having been effected upon them as stated by the court above herein. the court is satisfied that proper service was effected upon the parties as by the contents of the affidavit of service sworn by one Arnold Momanyi a licensed court process server. The said affidavit was dated 22nd May 2024. At paragraphs 3 and 4 of the same, it was indicated that an advertisement had been placed on the standard newspaper issue of 16th May 2025.
VII. Submissions
19. On 10th March 2025 while all the parties were present in Court, they were directed to have the Petition dated 19th October 2023 be disposed of by way of written submissions.
20. For some reason or the other, by the time of penning down this judgement, the Honourable Court had not been able to access any submissions by the parties herein save for those by the Petitioners and the 3rd Respondent. Thus, it proceeded to make the determination based on its merit and the submissions on record. A judgement date was reserved for 3rd June 2025 but due to the massive workload the court has rendered itself this 9th day of February accordingly.
A. The Written Submissions by the Petitioners.
21. The Law firm of Messrs. Musa Nyariki & Co Advocates filed submissions on behalf of the Petitioners herein. It was dated 27th September 2024. Mr. Nyariki Advocate for the Petitioners commenced his submissions by providing a brief background of the matter. The Learned Counsel then identified one [1] issue for determination being - Whether the subject Parcel No. KWALE/MWAVUMBO/1 rightfully belonged to the Petitioners collectively as members of the Mwayawa Gari Kambi Clan as well as members of the Mwavumbo group Ranch?
22. It was submitted that the Petitioners herein were all members of the Mwayawa Gari Kambi clan which was what constituted the Mwavumbo group Ranch and are the rightful proprietors of the subject Parcel known as KWALE/ MWAVUMBO/1 along with other members of the community and they have since time immemorial occupied and used the subject parcel KWALE/MWAVUMBO/1 as individuals as well as community members. That the aforementioned Mwavumbo group Ranch was formed and registered as per the now repealed Land (group representatives) Act of 1968 and the land is now held as community land pursuant to section 47 of the Community Land Act no. 27of 2016.
23. The learned counsel submitted that the ranch comprises of more than the 325 members in support of this petition and owns around 20,000 Hectares thereabout in the subject parcel known Kwale/ Mwavumbo/1 from which the parcel numbers; Kwale/Mwavumbo/ 47, 49, 52, 53, 168,169,170,171, 172, 173,176, were excised. That the initial allocation and registration of the title Kwale/Mwavumbo/1 was made in favour of the Mwavumbo group Ranch as the registered proprietor of as far back as 1978; records which are in custody of the 1st Respondent. That the 1st Respondent (Lands Registrar Kwale) while exercising its administrative powers and functions, unprocedurally and unlawfully effected subdivision of the subject Parcel Kwale/ Mwavumbo/1.
24. That the 2nd to 9th Respondents with the aid of the 1st Respondent have unlawfully and illegally derived titles from the said Kwale/Mwavumbo/1 and further had the subject parcel transferred into portion numbers; Kwale/ Mwavumbo/ 47, 49, 52, 53, 168,169,170,171, 172, 173,176 registered in the names of the 2nd to 9th Respondents herein. The 2nd Respondent has fraudulently and illegally been allocated a portion amounting to 4.04Ha and a further 36.423 Acres on 01.10.2011 and was issued with a certificate of lease on 13.04.2012 by the 1st Respondent being KWALE/MWAVUMBO/52 & KWALE/MWAVUMBO/53 respectively.
25. That the 3rd Respondent has fraudulently and illegally been allocated a portion amounting to 4.04Ha and was issued with a Title Deed on 29.03.2018 by the 1st Respondent for KWALE/MWAVUMBO/16 whereas the 4th and 5th Respondents have both fraudulently and illegally been allocated a portion amounting to 40.47Hа, 73.70 Ha, 7.80На, 7.80Ha and 4.05Ha and were issued with Title Deeds on 04.07.2011 and 10.06.2014 by the 1st Respondent for KWALE/MWAVUMBO/49, KWALE/MWAVUMBO/168,KWALE/MWAVUMBO/170,KWALE/MWAV UMBO/171 and KWALE/MWAVUMBO/172 respectively. The 6th Respondent has fraudulently and illegally been allocated a portion amounting to 4.05Ha and was issued with a Title Deed on 15.12.2020 by the 1st Respondent for KWALE/MWAVUMB0/173 whereas the 7th Respondent has fraudulently and illegally been allocated a portion amounting to 404.85Ha and was issued with a Title Deed on 10.09.2019 by the 1st Respondent for KWALE/MWAVUMBO/176. The 8th Respondent has fraudulently and illegally been allocated a portion amounting to 5.0 Acres and was issued with a certificate of lease on 30.12.2014 by the 1st Respondent for KWALE/MWAVUMB0/1A and the 9th Respondent has fraudulently and illegally been allocated a portion amounting to 202.35Ha and was issued with a Title Deed on 05.07.11 by the 1st Respondent for KWALE/MWAVUMBO/47.
26. It was submitted that the Petitioners challenge the tittle deeds issued by the 1st Respondent in favour of the 2nd_9th Respondents and submit that the sub division and transfer of the Subject parcel was done fraudulently, unprocedurally, and illegally without the knowledge or consent of the Petitioners as well as the other members of the community. The Petitioners rely on Section 26(1) (a) & (b) of the Land Registration Act, the case of Dina Management Limited v County Government of Mombasa & 5 others (Petition 8 (E010) of 2021) [2023] KESC 30 (KLR].
27. It was submitted that the Petitioner's right to own property is being hindered and unnecessarily frustrated by the actions of the 1st-9th Respondents in direct violation to their constitutional right to property. That unless the orders sought are granted the Petitioners stand to suffer substantial loss and damage. Reference was made to the holding in the case of:- “Mohamud Ibrahim Alio & 6 others - Versus - Mandera County Government & 6 others [2021] e KLR”, held that the Plaintiffs therein had gained legitimate expectation by virtue of being in occupation of the land. Further reference was made to the case of Mwavumbo Group Ranch Versus National Land Commissions, Kenya Railways Corporation, Chief Land Registrar, Attorney General, Tom Kalimbo Mwero, Johnson Mkala Mwero & Simon Ndegwa Mwero [2017] KEELC 124 (KLR) wherein it was held by Hon. L. KOMINGOI J. that the Mwavumbo Group Ranch was incorporated on 30th July, 2015 and that the Petitioner had proved a prima facie case that it is the registered proprietor of Kwale/ Mwavumbo/1 as far back as 1978. The court was urged to allow the petition as prayed.
B. The Written Submissions by 3rd Respondents
28. The Third Respondent’s submissions are dated 19th September 2024 and were filed by Hafsa Thabit Advocate for the 3rd Respondent. Counsel for the 3rd Respondent identified one issue for determination and which was whether the Petitioners' are the registered proprietors and title holders of the disputed parcel of land, KWALE/MWAVUMBO/1. It was submitted that the Petitioners' claim to be members of the Mwayawa Gari Kambi Clan/Mwavumbo Group Ranch and allege being the legal and lawful owners of the disputed parcel of land along with other members of the community had failed as they have failed to attach any documents proving that they are registered as a community and the disputed land has also not been registered as community land.
29. It was submitted that the Community Land Act Cap. 26, provides under Section 7 that a community claiming an interest in or right over community land shall be registered in accordance with the provisions of the said section. Reference was made to the dictum in the case of:- “Peter Ndungunya Ole Sono & 2 others – Versus - Lands Limited & another [2019] eKLR”, the Court stated that the parties had failed to prove who they were as a community and to show the members or any organisation for court to determine who the benefits are.
30. It was further submitted that the 4th and 5th Respondents were the registered proprietors and of Kwale/Mwavumbo/51. That Kwale/Mwavumbo/169 was created from land parcel Kwale/Mwavumbo/51. That the 3rd Respondent purchased L.R. No. Kwale/Mwavumbo/169 measuring 10 Acres at Samburu at a purchase price of Kenya Shillings Three Million Five Hundred June, Thousand Shillings (Kshs. 3,500,000/=) from the 4th and 5th Respondents in the year 2014.
31. That Contrary to the Petitioners' assertion that they are the registered proprietors and title holders of the disputed parcel of land, the 3rd Respondent contends that it is the legal and rightful owner of the Suit Property. Reference was made to the provisions of Section 26 of the Land Registration Act, No. 3 of 2012 on instances where a title can be impeached and it was stated that the conditions outlined therein were yet to be met. That the Petitioners' assertion that they have been occupying the disputed parcel of land is false as they have failed to attach any evidence showing that they have in occupation of the aforementioned parcel of land.
32. The court was invited to adapt the courts findings in the “Mumo – Versus - Trusted Society of Human Rights Alliance & 5 others Nairobi CA No. 290 of 2012” where the court held that a person who moves the court for judicial redress in public interest cases must be acting bona fide with a view to vindicating the cause of justice and that where a person acts for personal gain or private profit or out of political motivation or other oblique consideration, the Court should not allow itself to be seized at the instance of such person. Also in the case of: “Matiba – Versus - The Attorney General, HCC Misc. Application of 666 of 1990”, the Court held that it is a firmly established principle that a party who seeks redress for infringement of his or her fundamental rights is duty bound to demonstrate to the court in the clearest way possible which the manner in which the rights have been violated.
33. That the Petition had failed in meeting the threshold laid out in the above cases, the Petitioners' have listed a number of constitutional provisions allegedly contravened in respect to them, but they had failed to draw a correlation between the said infringements with the action of the 3rd Respondent. The court was urged to dismiss with costs the petition as it was incompetent, frivolous, and fatally defective.
III. Analysis and Determination
34. I have carefully read and considered the pleadings herein by the parties herein. The myriad of cases cited herein by parties, the relevant provisions of the Constitution of Kenya, 2010 and statures.
35. In order to arrive at an informed, just, equitable and reasonable decision, the Honourable Court has four (4) framed issues for its determination. These are: -
a) Whether the filed Constitution Petition filed by the Petitioners meets the threshold of a Petition.
b) Whether the filed Constitution Petition filed by the Petitioners is meritorious.
c) Whether this was the proper forum to institute this suit and if so whether the parties herein were entitled to the reliefs sought from the filed Petition.
d) Who bears the costs of the petition?
ISSUE No. a). Whether the filed Constitution Petition filed by the Petitioners meets the threshold of a Petition.
36. Before the Honorable Court arrives proceeds further, fundamentally, it seeks to be guided by the recognition of the fact that the constitutional provisions which are at the core of the Petition must be thoroughly reviewed and fully appreciated within the constitutional jurisprudence and Constitutionalism and its value as a whole. The Legal foundation of the Petition by the Petitioners were mainly under the provision of Articles 2, 3, 10, 21 ( 1 ) 27 ( 1 ) & ( 2 ), 40, 47, 67 ( 2 ) ( e ), 129 ( 1 ), 159 ( 2 ), 162 ( 2 ), 258 ( 1 ) and 259 ( 1 ) of the Constitution of Kenya, 2010. For clarity sake, I wish to expound on them thus:-
• Article 2 (1) provides that the Constitution is the supreme law of the Republic and binds all persons and all State organs at all levels of government.
• Article 3 (1) provides that every person has an obligation to respect, uphold and defend the Constitution.
• Article 10 (2) ( b ) sets out all the national values and principles of Government that binds all the State offices, State organs, public offices and all persons whereas they apply or interpret the Constitution. These include public participation, inclusivity non – discrimination & protection of the marginalised, social justice, equity and the rule of law;
• 21 ( 1 ) – it is the fundamental duty of the State and every State organ to observe, respect, protect, promote and fulfil the rights and fundamental freedoms in the Bill of Rights.
• Article 27 ( 1 ) - Every person is equal before the law and has the right to equal protection and equal benefit of the law.
• Article 27 (2) - Equality includes the full and equal enjoyment of all rights and fundamental freedoms.
• Article 40 (1) provides the right for every person to acquire and own property at any part of the Republic.
• Article 47 – Every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
• Article 67 ( 2 ) ( e ) – NLC – to initiate investigations, on its own initiative or, on a complaint into present or historical land injustices, and recommend appropriate redress.
• Article 129 ( 1 ) – Executive authority derives from the people of Kenya and shall be exercised in accordance with this Constitution.
• Article 159 ( 2 ) – In exercising Judicial authority, the Courts and tribunals shall be guided by the following principles:-
i. Justice shall be done to all, irrespective of status.
ii. Justice shall not be delayed.
iii. Alternative forms of dispute resolution including reconciliation mediation, arbitration and traditional dispute resolution mechanisms shall be promoted, subject to clause ( 3 ).
iv. Justice shall be administered without undue regard to procedural technicalities.
v. The purpose and principles of this Constitution shall be protected and promoted.
• Article 162 ( 2 ) – The establishment of Environment & Land Court as specialised courts.
• Article 258 ( 1 ) – Every person has the right to institute Court proceedings, claiming that the Constitution has been contravened or is threatened with contravention.
37. The Honorable Court has also taken deep cognizance to the importance and sensitivities apportioned to land in this country. Indeed, land is a source of livelihood and very emotive. It is not a matter to treat so lightly but with great care and circumspect lest one is misunderstood and it leads to grotesque conflict which may even cause blood shed as it has happened before and quite often. Therefore, no citizen is to be deprived off his land by the State Or any public authority against his wish unless expressly authorized by law and public interest.
38. As a matter of course, the Constitution of Kenya under Article 259 (1) provides a guide on how it should be interpreted as such:-
This Constitution shall be interpreted in a manner that:-
Promotes its purposes, values and principles;
Advances the rule of law, and the human rights and fundamental freedoms in the Bill of Rights;
Permits the development of the law; and
Contributes to good governance……”
39. This Court must give a liberal interpretation and consideration to any provision of the Constitution and have regard to the language and wording of the Constitution and where there is no ambiguity attempt to depart from the straight texts of the Constitution must be avoided.
40. Further, it is important to fathom that the Constitution is “a living instrument having a soul and consciousness of its own” . It must always be interpreted and considered as a whole with all the provisions sustaining and coordinating each other and not destroying the other. Based on the principles set out in the edit of The Court of appeal case of the Mumo Matemu – Versus – Trusted Society of Human Rights Alliance & Another (2013)eKLR provided the standards of proof in the Constitutional Petitions as founded in the case of Anarita Karimi Njeru –Versus - Republic [1980]KLR 154 where the court is satisfied that the Petitioner’s claim were well pleaded and articulated with absolute particularity. It held:-
“Constitutional violations must be pleaded with a reasonable degree of precision…………”
Further, in the “Thorp – Versus – Holdsworth (1886) 3 Ch. D 637 at 639, Jesse, MR said in the year 1876 and which hold true today:
“The whole object of pleadings is to bring the parties to an issue and the meaning of the rule……was to prevent the issue being enlarged which would prevent either party from knowing when the cause came on for trial what the real point to be discussed and decided was. In fact, the whole meaning of the system is to narrow the parties to define issues and thereby diminish expense and delay especially as regards the amount of testimony required on either side at the hearing”
41. In application of these set out Constitutional principles for filing a Constitution Petition to this case, undoubtedly, the Honorable Court is fully satisfied that the Petitioner herein has dutifully complied and fully met the threshold of reasonable precision in pleadings for instituting this Petition against the 1st 2nd, & 3rd Respondents herein and pleading for the prayers sought.
ISSUE No. a). Whether the Petition constitutes a proper Constitutional Petition
42. The Honourable court has also taken deep cognizance to the importance and sensitivities apportioned to land in this country. Indeed, land is a source of livelihood and very emotive. It is not a matter to treat so lightly but with great care and circumspect lest one is misunderstood and it leads to grotesque conflict which may even cause blood shed as it has happened before and quite often.
43. Therefore, no citizen is to be deprived off his land by the State Or any public authority against his wish unless expressly authorized by law and public interest. The provision of Article 258 of the Constitution is explicit on who can institute a constitutional petition before court. the same provides as follows:-
“(1) Every person has the right to institute court proceedings claiming that this Constitution has been contravened, or is threatened with contravention.
(2) In addition to a person acting in their own interest, court proceedings under clause (1) may be instituted by –
a. A person acting on behalf of another person who cannot act in their own name;
b. A person acting as a member of, or in the interest of, or a group or class of persons;
c. A person acting in the public interest.”
44. In relying on the above provisions of the constitution, it is clear that the Petitioner has a right to institute the Petition before court and the same has therefore been correctly exercised. The Petitioner alleges abuse of his rights by the Respondents in failing to issue him with a title deed over his sub - divided land parcel and which is the suit property herein. The Petitioner maintains that his right to ownership of property and use of the same has been violated and has necessitated the instant petition.
45. I have considered the affidavit evidence as relayed upon the court by the Petitioner. It is not however, enough to allege that one’s fundamental freedoms or rights have been violated. The violation must be proved. The provision of Section 107 (1) of the Evidence Act Cap. 80 Laws of Kenya is clear in this regard and provides as follows:-
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”
46. The letter and spirit of the above provision has been captured in several decisions of the superior courts including but not limited to the cases of Anarita Karimi Njeru –vs- Republic [1979] eKLR and Mumo Matemu –vs- Trusted Society of Human Rights Alliance & 5 others [2013] eKLR. Ancillary to the foregoing is the requirement that any prospective petitioner ought to set out his or her complaint with precision and clarity to enable the court to ascertain whether or not a given right or fundamental freedom has been infringed.
47. In the case of:- “Anarita Karemi – Versus - Republic 1976-1980 KLR Trevelyan & Hancox, JJ”, [and which has been heavily relied upon by the respondents], threshold for proof of infringement and violation of Fundamental rights was summarized as follows;
“We would, however, again stress that if a person is seeking redress from the High Court on a matter which involves a reference to the Constitution, it is important (if only to ensure that justice is done to his case) that he should set out with a reasonable degree of precision that of which he complains, the provisions said to be infringed, and the manner in which they are alleged to be infringed.”
48. The Court of Appeal in the Case of “Mumo Matemu – Versus - Trusted Society of Human Rights, Alliance & 5 others (2013) eKLR” observed as follows:-(44) We wish to reaffirm the principle holding on this question in “Anarita Karimi Njeru (Supra)”. In view of this we find the petition before the High Court did not meet the threshold established in that case. At the very least the 1st Respondent should have seen the need to amend the Petition so as to provide sufficient particulars to which the Respondents could reply. Viewed thus, the Petition fell short of the very substantive test to which the High Court made reference to. In view of the substantive nature of the shortcomings, it was not enough for the Superior Court below to lament that the Petition before it was not the “epitome of precise, comprehensive, or elegant drafting” without requiring remedy by the 1st Respondent.”
49. Further in Ostenah Ogero Taracha – Versus - Ethics & Anti - Corruption Commission & Attorney General [2017] eKLR the court held that:
“It is not however, enough to allege that one’s fundamental freedoms or rights have been violated. The violation must be proved. Section 107 (1) of the Evidence Act Cap. 80 Laws of Kenya is clear in this regard and provides as follows; “Whoever desires any court to give Judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist”
50. I have carefully perused through the Petition as filed. The gist of the same surrounds the actions of the 1st Respondent herein in failing to discharge his duties of effecting the transfer of the suit properties and preparing titles to the same. The Petitioner further challenges the 1st Respondent’s failure to give any proper reason as to why the title deeds have not been issued to date and why he has not been summoned inorder to shed light on anything concerning the suit property. I will reproduce the entire Article;
40. Protection of right to property
(1) Subject to Article 65, every person has the right, either individually or in association with others, to acquire and own property—
(a) of any description; and
(b) in any part of Kenya.
(2) Parliament shall not enact a law that permits the State or any person—
(a) to arbitrarily deprive a person of property of any description or of any interest in, or right over, any property of any description; or
(b) to limit, or in any way restrict the enjoyment of any right under this
Article on the basis of any of the grounds specified or contemplated in Article 27(4).
(3) The State shall not deprive a person of property of any description, or of any interest in, or right over, property of any description, unless the deprivation—
(a) results from an acquisition of land or an interest in land or a conversion of an interest in land, or title to land, in accordance with Chapter Five; or
(b) is for a public purpose or in the public interest and is carried out in accordance with this Constitution and any Act of Parliament that—
(i) requires prompt payment in full, of just compensation to the person; and
(ii) allows any person who has an interest in, or right over, that property a right of access to a court of law.
(4) Provision may be made for compensation to be paid to occupants in good faith of land acquired under clause (3) who may not hold Title to the land.
(5) The State shall support, promote and protect the intellectual property rights of the people of Kenya.
(6) The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.
51. To my mind, the thrust of Article 40 is to protect proprietary rights under the law. Such rights are governed by various statutes in place, It is not in contention that the Petitioners are not the registered owners of the suit property. The Petitioners have no absolute and indefeasible title of the suit property that it is capable of being protected under Article 40. This right is only available once a title is issued under the Act, the holder thereof acquires an indefeasible title which cannot be taken away except in accordance with the Constitution and the law. For that reason, the argument advanced by the Petitioners herein is not only untenable, unstainable but unfounded. It must fail.
52. In my opinion, the court is being called upon to make a determination on the conduct of the Land Registrar in failing to discharge his duties but the pleadings are being clothed with a veil of abuse of rights which does not fit. It is my considered view that the Petition as drafted does not meet the threshold of a Constitution Petition as set out in the Anarita Karimi’s case and emphasized in Mumo Matemu’s case. (supra) contrary to the Doctrine of Constitutional avoidance and Doctrine of Exhaustion. Ideally, the Petitioners should have opted to seek for Prerogative orders in form of “Mandamus” or “Certiorari” or “Prohibition” under the Judicial Review as provided for under the provisions of Section 8 & 9 of the Law Reform Act, Cap. 26 or Article 47 of the Constitution of Kenya, 2010 against the Land Registrar compelling him/her to discharge his/her statutory duties rather than instituting a Constitutional Petition. Thus, for this very reason, the Petition not merited.
ISSUE No. c). Whether this was the proper method or mode to institute this suit and if so, the parties herein are entitled to the reliefs sought from the filed pleadings.
53. Under this sub heading, the Honorable Court extrapolate further on an issue strongly brought out by all the Respondents while attacking the Petition. The said issue is whether this was the Constitution Petition was the proper method to have sought for the said reliefs. From the very onset, the Honorable Court has comprehensively deliberated on this issue herein and thus the answer is already stated. In simple terms, from the relief sought by the Petitioners, the suit ought to have been by way of filing an ordinary suit and not a Constitution Petition. By arriving at this decision, the Court considers the fact that it would lead to or germinate to what is now termed as “Doctrine or principle of Constitutional Avoidance” as already alluded to above. It is a preference of deciding a case on any other basis other than one which involves Constitutional issue being resolved. This is where it is possible to decide a case without reaching a Constitutional issue, it should be done. It is argued that where infringement of rights alleged can be founded on the substantive law, the proper course is to bring the claim under the law and not the under the Constitution through a Petition. It encompasses three main principles which are standing, ripeness and mootness. Comparatively, this doctrine is just like in the case of the Doctrine of Exhaustion or Res Judicata or doctrine of Justiciability (the limitations on the Constitutional arguments that the Court will entertain). The doctrine of avoidance precludes a Court from entertaining a case which is conferred by a statute. The doctrine of avoidance is primarily viewed by Courts from the position that although a Court could take up a matter and hear it, it would still decline to do so if there is another mechanism through which the dispute could be resolved. In other words the Court will not determine a Constitutional issue when a matter may properly be decided on another basis. This legal position was upheld in several decisions including the cases of: “Sports & Recreation Commission – Versus – Sagittarius Wrestling Club & Another“ (2001) (2) ZLR 501 (S) and John Harun Mwau - Versus - Peter Gastrow & 3 Others [2014] eKLR and the Supreme Court case of “Communication of Kenya & 5 Others – Versus – Royal Media Services Limited & 5 Others (2014) eKLR page 259” the Court held that the Constitution only ought to be invoked when there is no other recourse for disposing of the matter and in which the Court expressed itself in the following terms:-
“Courts will not normally consider a constitutional question unless the existence of a remedy depends on it; if a remedy is available to an applicant under some other legislative provision or some other basis, whether legal or factual, a court will usually decline to determine whether there has been in addition to a breach of the other declaration of rights…It is an established practice that where a matter can be disposed of without recourse to the Constitution, the Constitution should not be invoked at all. The court will pronounce on the constitutionality of a statute only when it is necessary for the decision of the case to do so.”
54. Similarly, in the case of “Uhuru Muigai Kenyatta - Versus - Nairobi Star Publications Limited [2013] eKLR, Lenaola, J (as he then was) held that:
“Where there is a remedy in Civil Law, a party should pursue that remedy and I say so well aware of the decision in Haco Industries where the converse may have been expressed as the position. My mind is clear however that not every ill in society should attract a constitutional sanction and as stated in AG – Versus - S.K. Dutambala Cr. Appeal No.37 of 1991 (Tanzanian Court of Appeal), such sanctions should be reserved for appropriate and really serious occasions.”
55. The Learned Judge, Justice Sila Munyao in “Parkire Stephen Munkasio & 14 others – Versus - Kedong Ranch Limited & 8 others [2015] eKLR rendered himself thus:-
26. I think this is a good point to also address the argument that this Petition is incompetent for seeking to pursue a claim for adverse possession as a Constitutional Petition. I agree with this argument. Claims for adverse possession are adequately addressed by the Limitation of Actions Act, CAP 22, Laws of Kenya, and the Civil Procedure Rules, specifically Order 37 thereof. Claims of adverse possession are private law claims which need to be addressed through the private law legal channels provided. I do not see how the Petitioners can assert a claim for adverse possession, a purely private law claim, through a constitutional petition. Indeed I doubt if there is a constitutional violation which one will point at, when pursuing a suit for adverse possession. It follows that even if I am wrong on the point that the issue of adverse possession on behalf of the same parties herein has previously been litigated, the aspect of this Petition, that relates to pursuance of a right over land by dint of adverse possession is incompetent, for there are laid down procedures on how to pursue an adverse possession suit, which ought to be followed.
27. I agree with Mr. Musangi for the 3rd Respondent that not every violation of proprietary rights ought to provoke a constitutional petition. I agree, that where there are private rights being agitated, the proper recourse is to file an ordinary suit, for determination and not to file a Constitutional Petition. Mr. Musangi's view was that the entire Petition pursues private rights. On my part, I hesitate to make a final conclusion of this argument at this preliminary stage, for on the face of it, the petitioners cite various constitutional violations, which appear to go beyond the agitation of private proprietary rights. I would rather hear the Petitioners first, before concluding that the Petition agitates purely private rights.
56. In direct application of the above cited provisions, certainly I conversely state that a Constitutional Petition is not an appropriate mechanism to ventilate claims based on title for Land adverse possession. For avoidance of doubt this issue is better dealt with through laid down procedure
57. Painstakingly, I note that the Petitioners herein were already guided by this Court on the rightful laid down procedure to pursue for a claim for adverse possession which is an originating summons and not a constitutional Petition but despite of this this vital lesson from the Court the Petitioner chose not to take an appropriate action including amending the Petition. For these reasons, I hold that the Constitution Petition is the wrongful mode to have instituted this suit and therefore it fails on arrival.
58. The instant Petition as presented by the Petitioners is premised on violation of several rights listed in the Petition. In seeking to determine whether the petition is competently before court, the court will first address the Petitioners competence to institute proceedings in relation to violation of rights. Article 258 (1) of the Constitution grants the Petitioners the right to institute proceedings in relation to violation of their rights. This Article provides thus;
“Every person has the right to institute court proceedings, claiming that this Constitution has been violated, or is threatened with contravention”.
59. This court was established by Article 162(2)(b) of the Constitution of Kenya 2010. One of its mandate therein is to determine the environment and the use and occupation of and title to land. The issues herein deal with the violation of the rights related to the environment use and occupation of land. Where a claim is based on alleged breaches of constitutional rights, this court has original jurisdiction to determine the same see Nzomo (Suing on his own behalf and on behalf of Kunde Road Residents Welfare Association) – Versus - Ontime Real Estate Ltd & 2 others (Environment & Land Petition E004 of 2023) [2024] KEELC 1572 (KLR) (14 March 2024) (Ruling)
60. The South African Constitutional Court in Fredricks & Other – Versus - MEC for Education and Training, Eastern Cape & Others (2002) 23 ILJ 81 (CC), outlined what a constitutional issue entails and the jurisdiction of a Constitutional Court. It stated as follows: -
a. the Constitution provides no definition of ‘constitutional matter’. What is a constitutional matter must be gleaned from a reading of the Constitution itself: if regard is had to the provisions of… Constitution, constitutional matters must include disputes as to whether any law or conduct is inconsistent with the Constitution, as well as issues concerning the status, powers and functions of an organ of State…. the interpretation, application and upholding of the Constitution are also constitutional issues. So too …. is the question of the interpretation of any legislation or the development of the common law promotes the spirit, purport and object of the Bill of Rights. If regard is had to this and to the wide scope and application of the Bill of Rights, and to the other detailed provisions of the Constitution, such as the allocation of powers to various legislatures and structures of government, the jurisdiction vested in the Constitutional Court to determine constitutional matters and issues connected with decisions on constitutional matters is clearly on extensive jurisdiction…
61. Having established that the Petition herein is competently before this court, the next issue for determination will be whether the Petitioners have made a case for themselves for grant of the orders sought. The answer to that is in the negative.
ISSUE No. b). Whether the Petition discloses a violation of the Petitioners constitutional and fundamental rights
62. It is settled by the law that the burden of proving violation or threat of violation of a constitutional right is upon the Petitioners as was established in “Anarita Karimi Njeru – Versus - Republic [1979] eKLR” where it was held that a Petitioner must satisfy the evidential burden that a specific right exists and which right has been violated or restricted, besides pleading the same with reasonable particularity and precision.
63. The above position was reiterated by the Court of Appeal in the case of:- “Mumo Matemu – Versus - Trusted Society of Human Rights Alliance & 5 others [2013] eKLR”. In the case of: “Matiba – Versus - Attorney General [1990] KLR 666” it was expressly stated that a Petitioner ought to express the manner in which the Respondents violated their rights with precision.
64. The Petitioners herein allege that the Respondents have invaded the suit property herein and taken occupation of the same to their detriment. It is alleged that the suit property belongs to the Petitioners herein by virtue of them being members of the Mwavumbo Group Land. That the 1st Respondent has enabled transfer and sub - division of the suit property to the rest of the Respondents and to which actions have resulted in violation of their rights which include Article 10 of the constitution on principles of governance, Article 40 on protection of the right to property amongst several other rights listed on the face of the petition and above herein.
65. Have the Petitioners sufficiently proved the allegations? The Supreme Court in “Communications Commission of Kenya & 5 Others v Royal Media Services Limited & 5 Others had the following to say on Constitutional Petitions:
“-Although Article 22(1) of the Constitution gives every person the right to initiate proceedings claiming that a fundamental right or freedom has been denied, violated or infringed or threatened, a party invoking this Article has to show the rights said to be infringed, as well as the basis of his or her grievance. This principle emerges clearly from the High Court decision in Anarita Karimi Njeru – Versus - Republic, (1979) KLR 154: the necessity of a link between the aggrieved party, the provisions of the Constitution alleged to have been contravened, and the manifestation of contravention or infringement. Such principle plays a positive role, as a foundation of conviction and good faith, in engaging the constitutional process of dispute settlement”.
66. Mativo J in the case of “Leonard Otieno v Airtel Kenya Limited [2018] eKLR expounded that:-
“It is fundamental principle of law that a litigant bears the burden (or onus) of proof in respect of the proposition he asserts to prove his claim. Decisions on violation of Constitutional rights should not and must not be made in a factual vacuum. To attempt to do so would trivialize the constitution, an inevitable result in ill-considered opinions. The presentation of clear evidence in support of violation of constitutional rights is not, a mere technicality; rather, it is essential to a proper consideration of constitutional issues. Decisions on violation of constitutional rights cannot be based upon the unsupported hypotheses.”
67. In all fairness to the Petitioners, I have perused the annextures to the Petition herein in proof of violation of the rights alluded to. They all contain several land search certificates from the 1st Respondent’s office which confirm that the resultant sub - divisions of the suit property are indeed registered under the names of the 2nd to 9th Respondents. The 3rd and 5th Respondents have in their responses opposing the Petition informed court that the properties were acquired legally by way of purchase and have infact produced by way of affidavit evidence copies of land sale agreements to cement this fact.
68. The question would then be, has the process through which the Respondents obtained titles been flawed? From the Petition, I do not seem to see any demonstration of the said assertion. The illegality of the transactions has not been demonstrated by any evidence including empirical documentary evidence. Also, I do not seem to find any evidence challenging the capacity of the parties that took part in the sale transactions and hence the contract for sale of the property is not voidable.
69. Further, the matters in the Petition are those that require evidence. Ideally, it would be undertaken through a full trial where “Viva Voce” evidence was adduced and not through affidavits. The rules of evidence are very clear, that he who alleges must prove. Section 107 – 109 provide thus: -
107.Burden of proof.
(1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
108.Incidence of burden.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.
109.Proof of particular fact.
The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”
70. What is however a very pertinent issue and which has been raised by the Respondents is the capacity of the Petitioners to institute this suit. They claim to be members of the Mwavumbo Group Ranch by virtue of them having been in occupation of the suit property since time immemorial. It is alleged that the property is community land, I however note that no evidence has been presented before this court to confirm registration of the suit property having ever been under the Mwavumbo Group Ranch.
71. It is further noted that the Petitioners did not present before this court any evidence showing their membership in the group ranch or the clan stated herein. It is therefore difficult for the court to ascertain the Petitioners stake over the suit property as no evidence of the same has been placed before this court. This being a claim of violation of constitutional rights, it is also a matter of principle that one cannot claim to be deprived of that which he does not have rights over.
72. In the case of “Veronica Njeri Waweru & 4 Others – Versus - City Council of Nairobi & 2 others [2012] eKLR” the Court observed: “The Petitioners have readily conceded that they have been occupying public property, a road reserve, for the last ten years. They have licenses to operate businesses, but have no proprietary interest in the land. Clearly, therefore, their claim that their rights under Article 40 have been violated has no basis. They do not own the land, and they therefore cannot be deprived of that which they have no rights over. I therefore find and hold that there has been no violation of the Petitioner’s right to property under Article 40.”
73. Having failed in ascertaining their interest in the suit property, it is this court’s finding that the Petitioners have failed to demonstrate any violation of their rights as listed in the Petition. By all means, the conclusion by Court cannot be deemed to filing within the purview of procedural technicalities.
ISSUE No. c). What recourse is available to the Petitioners
74. The suit property has been demarcated into several portions and which are registered in the names of the Petitioners. It is not disputed that the 2nd to 9th Respondents hold titles to these properties. In the case of “Dr. Joseph Arap Ngok – Versus - Justice Moijo Ole Keiwua & 5 Others, Nai. Civil Appeal No. 60 of 1997” the court declared that: -
“Section 23 (1) of the then Registration of Titles Act (now reproduced substantially as Sections 25 and 26 of the Land Registration Act) gives an absolute and indefeasible title, interest and right over the land to the owner of the property. The title of such an owner can only be subject to challenge on grounds of fraud or misrepresentation to which the owner is proved to be a party. Such is the sanctity of title bestowed upon the titleholder under the Act. It is our law and law takes precedence overall other alleged equitable rights of title. In fact, the Act is meant to give such sanctity of title, otherwise the whole process of registration of Titles and the entire system in relation to ownership of property in Kenya would be placed in jeopardy.”
75. One thing is notable, that this court is at this particular instance a constitutional court tasked with determination of whether or not there has been a violation of rights. To delve into determine whether a case has been made to challenge title to the suit property on grounds of mistake, fraud, irregularity or illegality, corrupt scheme needs evidence to establish those grounds on a balance of probabilities in a separate suit. The Petitioners would need to file an ordinary civil suit instituted by way of plaint. That is the forum in which oral (Viva Voce) evidence can be taken and all evidence including documentary evidence regarding the process of the sale and transfer of the suit property can be tested by way of physical examination of documents and cross-examination. This was aptly stated in the case:- “Malindi ELC Petition No. 19 Of 2017- Likizo Limited – Versus - Nasib Kashuru Mumbo & Others” this court held as follows:
“Usually the facts in a Petition are straightforward and undisputed and the court is required to apply the constitutional provisions to the facts to come up with a determination. Petitions have been struck out in the past when the court realized that they sought to litigate over contentious issues such as ownership of the land or validity of a disputed title, which issues by their very nature would be favoured by an ordinary trial by way of Plaint.”
76. The Petition can offer no quick fix to the issue of ownership of the suit property herein. Having not met the threshold of what constitutes a Constitutional Petition, I find no recourse can be offered to the Petitioners in the instant.
ISSUE No. c). Who bears the costs of the Petition?
77. It is now well established that the issue of Costs is at the discretion of the Court. Costs mean the award that a party is grated at the conclusion of a legal action or proceeding in any litigation. The Black Law Dictionary defines “Cost” to mean, “the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other”.
It is not well established that and from Rule 26 (1) and (2) of the Constitution of Kenya (Protection of Rights and Fundamental Freedom) Practice and Procedure Rules 2013, the award of costs is at the discretion of the Cost.
“In exercising its discretion to award costs, the court shall take appropriate measures to ensure that every person has access to court to determine their rights and fundamental freedoms.
78. The Proviso of the Provisions of Section 27(1) of the Civil Procedure Act Cap 21 holds that costs follow the event. By event it means the results of the legal action or process in any litigation (see the Supreme Court Case of Jasbir Rai Singh Rai – Versus- Tarhochan Singh (2014) eKLR and Mary Wambui Munene –Versus- Ihururu Dairy Cooperative Societies eKLR (2014)
In the case of “Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180, the House of the Lords noted:-
“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular issue should go to the party who succeeds upon it…..” (aso see from the Court of Appeal cases of “Rosemary Wambui Munene – Versus – Ihururu Dairy Cooperatives Societies Limited (2014), eKLR & Cecilia Wambui Ngayo -Versus -Barclays Bank of Kenya Limited (2016) eKLR)
Additionally, the Supreme Court fortified this position in the case of “Jasbir Singh Rai & 3 others – Versus - Tarlochan Singh Rai & 4 Others [2014] eKLR thus:
“so, the basic rule of attribution of costs is: costs follow the event. But it is well recognized that this principle is not to be used to penalize the losing party: rather it is for compensating the successful party for the trouble taken in prosecuting or defending the suit…The object of ordering a party to pay costs is to reimburse the successful party for amounts expended on the case. Costs are a means by which a successful litigant is recouped for expenses to which he has been put in fighting the action.
79. From this provision of the law, it means the whole circumstances and the results of the case where a party has won the case. In the instant case, the Petitioners herein have failed to establish their case. Thus, the 3rd and 5th Respondents being the only ones who participated in this Petition, are entitled to Costs for the Petition to be paid by the Petitioners.
IV. Conclusion & Disposition
80. Consequently, having conducted a comprehensive and expansive expositions on the framed issues, this Honourable Court is satisfied that the Petitioners herein have failed to establish their case. Specifically, the Honourable Court holds:-
a) THAT Judgement be and is hereby entered against the Petitioners herein and in favour of the 1st, 2nd & 3rd Respondents herein.
b) THAT the Constitution Petition dated 19th October, 2023 filed by the Petitioners be and is hereby found to be unmeritorious for being in breach of both “the Doctrine of Constitutional Avoidance and Doctrine of Exhaustion”. Hence, it fails in entirety and is dismissed.
c) THAT costs of the Petition to be awarded to the 3rd and 5th to be borne by the Petitioners herein
IT IS ORDERED ACCORDINGLY.
JUDGEMENT DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS………23RD …….. DAY OF…….MARCH ….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) Mr. Nyariki Advocate for the Petitioners.
c) M/s.Halsa Advocate for the 3rd Respondent.
d) No appearance for the 1st, 2nd, 4th, 5th, 6th, 7th, 8th & 9th Respondents